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decree appellant insisted ought to be reversed, for that the agreement was sufficiently proved; and though not originally reduced into writing, occasioned by the entire confidence the parties had in each other, yet the same having been at appellant's great expence so far executed on his part, there ought to be a reciprocal performance of it on the other part; and the rather so, as the terms of the agreement were reduced to a certainty, by the lease prepared by direction of the lessor, and the execution thereof prevented by the unfair practices of the respondents, or some of them. (J. Jekyll. Hen. Poley.)

The respondents, in affirmance of the decree, alleged, that Isaac Foxcroft made bis will, dated 30th August, 1698, of the import stated by appellant, and died 15th September following; and, in Hillary term then next, appellant filed his bill against respondents for a specifick execution of a parole agreement expended, and that respondents had answered that they knew not that appellant was any ways concerned in pulling down, and rebuilding the premisses, otherwise than as agent or servant for testator, at whose proper charge and expence they insisted the work was done, and denied that any such agreement for a lease was ever made by the testator to appellant, and shewed that appellant was greatly indebted to the testator before any building begun, and that testator had no other way to obtain his debt but by employing him in work; and that testator, though of perfect understanding, had not taken any notice of such supposed [111] agreement in his will, and that appellant had not required a performance thereof for near three years and an half after, nor until so near an approach of the testators death; and shewed further, that three of appellant's witnesses were considerable legatees in testator's will, and that their evidence tended to enlarge the personal estate for their own benefit; and finally insisted, that nothing of such pretended agreement being in writing, and signed by either of the parties, the statute made for preventing frauds and perjuries, was a full bar to the appellants pretences. (John Clapham.)

Die Lunæ, 7 Aprilis, 1701. Upon hearing council on this appeal, it was ordered and adjudged by the Lords, that the decretal order of dismission complained of should be reversed, and that the respondent, Isaac Foxcroft, or such other of the respondent's to whom the estate in question should come by virtue of his father's will, should when he or they should be of age execute to the appellant Lyster, his executors, &c. such a lease of the premisses in question as was prepared and approved of by the said Isaac Foxcroft, the father, before his death, and that the appellant and his assigns should in the mean time hold and enjoy the same under the covenants and agreements in the said intended lease contained, discharged of all incumbrances done by said Isaac Foxcroft, or any claiming under him. Lords Journ. vol. xvi. p. 644. (2 Vern. 456. [Foxcroft v. Lister]. Gilb. Rep. 4. 11. Prec. Cha. 519. 526.)

The appellant stated that by a settlement made 15th April, 1674, on the marriage of William Thomas, and Mary his wife, two several terms of 500 years, lands in Glamorgan, and Monmouth, were limited to lord Wharton and Goodwin Wharton, in trust upon failure of issue male to raise 5000l. for daughters, and if but one daughter to be payable at her age of eighteen or marriage, with interest, at three pounds per. cent. from the death of William Thomas, for her maintenance and education; and there being a son named Edmond, (afterwards Sir Edmond) and a daughter named Ann, and no provision being made for daughters, unless